CORRESPONDENCE 


BETWEEN 

DAVID  BANKS 

A  COMMISSIONER  TO  REPORT  A  PLAN  FOR  THE  "WEST  END 
RIVERSIDE  IMPROVEMENT" 

AND 

PETER  B.  SWEENY 


David  Bank 


LEGAL  CONSIDERATION  OF  THE  ACT 
OF  THE  LEGISLATURE  RELATING 
TO  THE  PROPOSED  BRIDGE  BE- 
TWEEN THE  CITY  OF  NEW  YORK 
AND  THE  STATE  OF  NEW  JERSEY 

(Laws  of  1890,  Chap.  233) 


CORRESPONDENCE 

BETWEEN 

DAVID  BANKS 

A  COMMISSIONER  TO   REPORT   A  PLAN   FOR  THE   "  WEST  END 
RIVERSIDE  IMPROVEMENT  " 

AND 

PETER  B.  SWEENY 


NEW  YORK 
BANKS  &  BROTHERS 

LAW  PUBLISHERS 
189I 


7(7 


Press  of  J.  J.  Little  A  Co. 
Astor  Place,  New  York 


LEGAL  CONSIDERATION 


OF  THE  ACT  OF  THE  LEGISLATURE  RELATING  TO  THE 
PROPOSED  BRIDGE  BETWEEN  THE  CITY  OF  NEW 
YORK  AND  THE  STATE  OF  NEW  JERSEY. 

,  (Laws  of  1890,  Chapter  233.) 


Letter  of  inquiry  from  David  Banks,  Esq.,  one  of  the 
Commissioners  appointed  to  consider  and  report  upon  the 
plan  for  the  West  End  Riverside  improvement. 

Hon.  Peter  B.  Sweeny. 

Dear  Sir ; — I  have  noticed  in  the  public  press,  refer- 
ences to  a  bill  passed  at  the  late  session  of  the  Legislature, 
giving  to  certain  gentlemen  the  privilege  of  constructing  a 
bridge  across  the  Hudson  River,  in  connection  with  which 
they  claim  extensive  authority  affecting  the  city  and  prop- 
erty owners  at  large.  For  example,  the  right  to  construct 
viaduct  roads,  starting  at  the  bridge  terminus  at  Seventy- 
first  Street,  one  hundred  and  fifty  feet  high,  and  running 
through  the  city  in  various  directions.  Also  to  cross  the 
Harlem  River,  and  establish  a  system  of  viaducts  in  that 
direction.  The  right  to  take  large  plots  of  land  for  station 
and  depot  purposes  is  also  claimed.  The  recent  announce- 
ment of  proposed  routes  came  as  a  great  surprise  to  the 
community,  that  being  the  first  intimation  of  the  scope  of 
the  scheme.    When  land  is  marked  to  be  taken  for  such 


4 


purposes,  it  cannot  be  sold  or  improved  ;  and  the  property 
along  which  a  viaduct  road  of  any  kind  is  to  be  built,  is 
deteriorated  in  value.  This  injury  is  increased  by  a  disfig- 
uring height. 

I  notice,  besides,  that  one  of  the  viaduct  routes,  when  it 
reaches  Seventy-ninth  Street,  takes  a  course  westerly  of 
the  Central  Railroad  tracks.  Is  not  this  an  encroachment 
on  the  property  set  apart  by  the  municipal  authorities  for 
the  great  Terrace  improvement  ?  You  are  aware  I  am 
a  member  of  the  Commission  appointed  to  report  a  plan 
for  the  improvement  of  this  practically  waste  land,  so  as  to 
provide  the  most  attractive  place  conceivable  for  the  recre- 
ation and  enjoyment  of  all  classes  of  the  community  on  an 
elevation  bordering  the  Hudson  River.  This  ground,  orna- 
mented by  the  skill  of  the  present  perfection  of  landscape 
gardening,  will  have  a  beauty  and  attractiveness,  aside  from 
the  practical  utility,  which  will  make  it  a  feature  of  our 
city  such  as  no  other  city  in  the  world  possesses.  The 
site  and  proportions  of  the  Hudson  River  contribute  to 
give  this  metropolis  its  unexcelled  advantages.  This 
improvement  is  an  effort  to  turn  to  the  best  account  our 
magnificent  natural  resources.  The  defeat  of  this  grand 
scheme  would  be  a  public  misfortune.  For  every  reason, 
therefore,  it  is  important  to  our  citizens  that  the  precise 
character  of  the  bridge  scheme  should  be  made  known. 
This  bridge  business  should  not  be  a  perpetual  menace,  and 
there  should  be  no  system  of  sudden  surprises  in  a  matter 
of  that  magnitude,  involving  the  welfare  of  the  city  in  so 
many  ways. 

I  have  thought  that  from  your  interest  in  the  Terrace 
improvement,  you  would  be  willing  to  undertake  the  task 
of  development  on  public  grounds — easier  for  you  than 


5 


most  members  of  your  profession,  because  of  your  famil- 
iarity with  the  laws  relating  to  the  city. 

By  doing  so,  you  will  confer  a  benefit  on  the  community, 
and  a  personal  favor  on 

Yours  respectfully, 

DAVID  BANKS. 

New  York,  December  13,  1890. 

REPLY  OF  PETER  B.  SWEENY. 

New  York,  December  15,  1890. 

David  Banks,  Esq. 

Dear  Sir  : — I  have  received  your  note  of  the  13th  inst., 
requesting  me  to  develop  the  precise  character  of  the 
scheme  embraced  in  the  act  of  the  Legislature  relating 
to  a  bridge  across  the  Hudson  River  to  the  State  of  New 
Jersey  (Laws  of  1890,  chap.  233),  in  its  effect  upon  the  West 
End  Riverside  improvement,  to  promote  which  you  are  a 
Commissioner — and  for  the  general  public  benefit.  My 
interest  in  the  success  of  the  improvement  to  which  you 
refer  had  induced  me  to  carefully  read  and  consider  the  law 
in  question  prior  to  receiving  your  communication.  I 
have  decided  convictions  as  to  its  principal  features.  I  give 
you  the  results  of  my  investigation  very  cheerfully. 

The  act  became  a  law  on  the  30th  day  of  April,  1890, 
without  the  approval  of  the  Governor,  in  accordance  with 
the  provisions  of  Article  4,  Section  9,  of  the  Constitution. 

It  declares  that  all  persons  who  shall  become  stockhold- 
ers, pursuant  to  the  act,  shall  be,  and  they  are  thereby  cre- 
ated a  body  corporate  by  the  name  of  The  New  York  and 
New  Jersey  Bridge  Company,  with  power  to  associate  with 
any  other  persons,  company,  association,  or  corporation  in 
the  United  States,  for  the  purpose  of  constructing  and 


6 


maintaining  a  permanent  bridge  for  passenger  and  other 
traffic,  over  the  waters  between  New  York  City  and  the 
State  of  New  Jersey,  together  with  all  necessary  appurten- 
ances and  approaches  thereto,  and  stations,  and  in  case  of 
destruction  to  reconstruct  the  same. 

CAPITAL  AND  ORGANIZATION. 

The  capital  of  the  Company  is  to  be  ten  millions  of 
dollars  in  one-hundred-dollar  shares.  Its  affairs  are  to  be 
managed  by  a  board  of  thirteen  directors.  The  officers  of 
the  Company  are  to  consist  of  a  President,  Vice-President, 
Secretary,  Treasurer,  and  Chief-Engineer,  who  shall  be 
elected  by  the  Board  of  Directors  at  their  first  meeting 
and  after  each  annual  election. 

The  Commissioners  provided  for  in  the  19th  Section  of 
the  act  are  to  appoint  some  suitable  place  in  the  city  of 
New  York  to  open  books  and  receive  subscriptions  to  the 
capital  stock  of  the  corporation,  of  which  two  weeks'  public 
notice  shall  be  given  in  at  least  one  newspaper,  published 
in  the  county  of  New  York,  and  said  Commissioners,  by  a 
majority  vote,  may  adjourn  from  time  to  time,  as  they  shall 
deem  proper,  and  open  the  books  for  further  subscriptions, 
until  the  sum  of  three  hundred  thousand  dollars  shall  have 
been  subscribed  in  capital  stock,  and,  in  case  of  an  excess 
of  subscribers,  they  may,  by  a  majority  vote,  apportion  the 
stock  among  the  subscribers  in  such  manner  u  as  they  may 
deem  most  likely  to  promote  the  interest  of  the  corpora- 
tion thereby  created."  The  sum  of  ten  dollars  upon  each 
share  of  stock  so  subscribed  for  shall  be  paid  to  the  Com- 
missioners. As  soon  as  such  ten  dollars  per  share  has 
been  paid,  "and  the  approbation  of  the  Commissioners 


7 


obtained,"  they,  or  a  majority  of  them,  shall  give  two 
weeks'  public  notice,  in  two  public  newspapers  published  in 
the  county  of  New  York,  of  a  meeting  of  the  stockholders 
to  choose  directors,  and  the  said  Commissioners,  or  a  ma- 
jority of  them,  shall  attend  and  preside  at  the  first  election, 
and  the  said  Commissioners  so  presiding  shall  under  their 
hands  certify  the  names  of  the  directors  so  elected.  It 
will  be  seen  that  the  privilege  of  becoming  a  stockholder 
and  the  election  of  the  first  Board  of  Directors  are  con- 
trolled by  the  said  Commissioners  or  a  majority  of  them. 
One  of  the  Commissioners  has  stated  that  the  amount  re- 
quired has  been  duly  subscribed,  and  as  the  Company  is 
represented  by  a  "  Secretary,"  Mr.  Charles  H.  Swan,  the 
first  organization  has  evidently  been  effected.  The  names 
of  the  directors  and  other  officers  have  not  transpired. 
But  it  cannot  be  doubted  that  the  selection  of  stock- 
holders, the  election  of  directors,  and  the  general  organi- 
zation have  followed  the  natural  course  and  represent  the 
promoters  of  the  scheme  and  their  associates.  It  is  not  at 
all  probable  that  any  alien  interest  has  been  permitted  to 
encroach  or  intervene.  The  Company  at  present  is  repre- 
sented, for  public  communication,  by  Mr.  Charles  H.  Swan, 
the  Secretary  of  the  Company,  and  I  am  informed  it  has 
offices  on  Broadway. 


WHAT  MAY  BE  DONE  WHEN  THIRTY  THOUSAND  DOLLARS 

IS  PAID  IN. 

The  selection  of  stockholders  becomes  complete,  in  the 
way  I  have  stated,  on  the  payment  of  the  sum  of  thirty 
thousand  dollars,  and  the  Board  of  Directors  elected  with 
the  approval  of  the  Commissioners  by  the  approbationized 


8 


stockholders.  The  Board  thus  elected  has  devolved  upon 
it  all  the  functions  of  the  corporation  provided  by  the  act. 
The  Company  has  then  power  to  borrow  such  sums  of 
money  as  may  be  necessary  for  constructing,  completing, 
and  maintaining  the  said  bridge,  appurtenances,  and  ap- 
proaches thereto,  and  stations,  and  for  acquiring  the  neces- 
sary real  estate  for  the  sites  thereof,  the  necessary  stations, 
buildings,  and  appurtenances  thereof,  and  the  approaches 
thereto,  and  to  mortgage  its  corporate  property,  and  gener- 
ally to  exercise  the  power  of  location  and  all  the  powers 
general  and  special  of  the  act.  There  is  no  limit  as  to 
amount  in  the  borrowing  capacity. 

To  exhibit  the  boldness  of  motive  which  lies  behind  the 
bill,  I  will  give  a  specimen  extract  from  the  financial  part 
of  the  scheme  :  "  It  shall  be  lawful  for  any  corporation 
chartered  by  the  Legislature  of  this  State  or  any  other 
State  to  loan  its  credit  to  the  corporation  hereby  created, 
or  to  subscribe  to  become  the  owner  of  the  stock  thereof  in 
like  manner  and  with  the  like  rights  of  individuals"  (Sec- 
tion 17). 

THE  BRIDGE. 

Before  presenting  the  considerations  which  appear  to  me 
to  be  appropriate  in  connection  with  the  power  granted  to 
this  Company — and  finally  the  insuperable  Constitutional 
objections  to  the  scheme — it  will  be  necessary  to  examine 
what  the  Company  propose  to  do  under  the  authority  of 
the  act,  as  manifested  in  its  first  "  location,"  recently  pro- 
claimed. The  principles  and  purposes  of  the  Company 
have  been  thus  developed,  and  we  have  the  guide  to  the 
pretensions  which  will  govern  it  in  all  the  future  "loca- 
tions" and  developments.    It  does  not  appear  in  authentic 


9 


form  whether  the  "  locations "  recently  announced  have 
been  made  by  the  Company  or  the  Commissioners.  As  to 
the  termini  of  the  bridge,  that  on  the  New  Jersey  side  is 
located  two  or  three  piers  north  of  Weehawken  Ferry, 
where  a  connection  is  formed  with  the  natural  elevation  of 
the  territory.  It  is  at  a  point  where  there  is  a  bluff  one 
hundred  and  eighty-five  feet  high — cutting  down  being  re- 
quired, instead  of  the  construction  of  viaducts.  On  the 
New  York  side  the  landing  is  made  where  the  grade  is  but 
ten  feet  above  mean  tide  ;  consequently  the  bridge  is  one 
hundred  and  forty  feet  high  from  the  surface.  This  is 
nearly  half  the  height  of  Trinity  Church  steeple  from  the 
ground. 

THE   BEGINNING  WITHIN   THIS  CITY. 

Now7,  as  to  the  general  purposes  of  the  Company  this  side 
of  the  river.  I  take  this  from  an  apparently  reliable  source 
— the  verbal  proclamations  of  Secretary  Swan. 

First. — The  viaduct  starts  at  the  North  River  between 
Seventieth  and  Seventy-first  Streets,  curving  in  a  south- 
easterly direction  until  within  a  few  hundred  feet  west  of 
West  End  Avenue,  just  south  of  the  southwest  corner  of 
Seventieth  Street.  From  this  point  it  runs  in  a  straight 
line  southerly,  keeping  about  one  hundred  feet  west  of 
West  End  or  Eleventh  Avenue,  and  passing  all  the  streets 
down  to  about  Forty-second  Street.  Here  it  again  curves, 
taking  in  the  property  in  a  line  with  the  curve  from  about 
the  northwest  corner  of  Forty-first  Street  to  the  northeast 
corner  of  Thirty-eighth  Street  and  Eleventh  Avenue,  where 
the  curve  ends.  Thence  the  tracks  run  easterly  in  a  straight 
line  along  the  north  side  of  Thirty-eighth  Street,  taking  in 
all  the  block  fronts  between  Eleventh  and  Eighth  Avenues. 
2 


TO 

At  this  point  they  strike  the  proposed  Union  Depot,  which 
will  occupy  the  entire  territory  bounded  by  Thirty-seventh 
and  Thirty-ninth  Streets,  Eighth  Avenue,  and  Broadway. 

The  viaducts  are  to  have  two  stories  for  tracks.  The 
upper  story  will  have  six  tracks  and  the  lower  story  two 
tracks.  The  former  is  "for  South  and  Southwestern  and 
the  latter  for  New  England  connections." 

Second. — It  will  connect  with  the  Manhattan  Elevated  by 
means  of  a  branch  running  diagonally  from  the  station  at 
Sixth  Avenue  and  Thirty-third  Street  to  the  Union  Depot, 
connecting  at  a  point  on  Thirty-seventh  Street,  a  little  east 
of  Seventh  Avenue,  running  through  the  blocks  between 
Thirty-fourth  and  Thirty-seventh  Streets  and  Broadway 
and  Seventh  Avenue.  That  is,  unless  it  should  be  changed 
to  run  directly  downBroadway. 

Third. — The  proclaiming  Secretary  goes  on  to  say  : 
Trains  will  run  from  the  Union  Depot  aboved  described, 
thence  along  the  tracks  as  outlined,  till  they  reach  a  point 
about  Sixty-first  Street  and  Eleventh  Avenue.  At  this 
point  a  new  line  of  tracks  will  branch  out  from  the  line  de- 
scribed, and  will  curve  in  a  northwesterly  direction  across 
and  through  the  blocks  bounded  by  Eleventh  Avenue  and 
the  North  River.  The  tracks  will  cross  those  of  the  Hud- 
son River  Road  at  the  height  of  some  twenty  feet  at  Six- 
tieth Street,  thence  descending  to  a  level  with  that  road  at 
or  near  Seventy-ninth  Street.  At  this  point  the  tracks 
will  be  level  with  those  of  the  Hudson  River  Road,  and 
will  run  just  outside  of  them  to  the  west,  and  parallel  with 
them  along  the  water  front,  eight  feet  above  high-water 
mark,  all  the  distance  between  Seventy-ninth  and  One  Hun- 
dred and  Fifty-second  Streets.  Here  they  will  run  again 
across  the  Hudson  River  Railroad  tracks  and  branch  off 


1 1 

easterly  in  a  curve  through  a  tunnel  between  One  Hundred 
and  Fifty-second  and  One  Hundred  and  Fifty-fifth  Streets, 
to  a  point  about  midway  between  Eleventh  Avenue  and 
the  North  River;  thence  along  and  under  One  Hundred 
and  Fifty-fifth  Street,  emerging  from  the  tunnel  at  the 
east  side  of  the  hill,  and  crossing  the  Manhattan  Road's 
West  Side  terminus  at  One  Hundred  and  Fifty-fifth  Street, 
some  eighteen  feet  in  the  clear  overhead  ;  thence  crossing 
the  Harlem  River  by  a  bridge  in  a  northeasterly  direction 
to  a  point  at  or  near  One  Hundred  and  Sixty-second  Street 
to  a  connection  with  the  New  York  and  Northern  and  New 
York  Central  Railroads  ;  thence  running  easterly  in  a 
straight  line  on  about  a  line  with  One  Hundred  and  Sixty- 
second  Street  to  the  Hudson  River  Road  ;  thence  to  the 
Spuyten  Duyvil  and  Port  Morris  Railroad,  paralleling  that 
road  easterly,  and  following  the  same  lines  to  its  terminus  at 
Port  Morris  on  the  Long  Island  Sound  ;  connecting  on  the 
route  with  the  Harlem  River  and  Portchester  Road,  leased 
by  the  New  Haven  Road. 

Fourth. — Mr.  Secretary  Swan  adds  :  "  Other  stations  will 
be  established  if  necessary." 

Such  are  the  routes  of  this,  the  opening  "  location."  It 
involves  in  its  southern  course  a  viaduct  for  six  tracks,  of 
two  stories,  starting  at  the  elevation  of  one  hundred  and 
forty  feet  ;  the  establishment  of  a  depot  embracing  four 
blocks  of  land  fronting  on  Broadway  and  extending  to 
Eighth  Avenue  ;  the  probable  closing  of  one  street,  Thirty- 
eighth  Street,  from  Broadway  to  Eighth  Avenue  ;  the  like 
closing  of  Seventh  Avenue  from  Thirty-seventh  Street  to 
Thirty-ninth  Street,  and  the  connection  with  the  Manhat- 
tan Elevated  Railroad  ;  and  in  its  northern  courses  along 
the  entire  river  front,  the  building  of  a  tunnel  at  one  part,  a 


I  2 


bridge  over  the  Harlem  River  at  another,  and  the  easterly 
progress  of  the  viaduct  to  Long  Island  Sound,  crossing  in 
its  way  the  several  railroads  mentioned,  all  of  which  are  to 
have  their  routes  changed  and  extended  so  as  to  brincr  them 
down  on  the  Company's  viaduct  to  the  bridge  and  to  the 
Union  Depot  at  Thirty-seventh  Street  and  Broadway  by 
the  permission  of  the  corporators.  There  must  be  a  mis- 
take in  the  statement  that  these  viaducts  are  to  be  laid  with 
railroad  tracks,  because  the  7th  Section,  I  have  mentioned, 
declares  that  "  nothing  in  this  act  contained  shall  author- 
ize the  Company  to  lay  down  railroad  tracks."  The  real 
plan  would  appear  to  be  to  give  the  authority  of  the  Com- 
pany to  any  railroad  company  it  may  connect  with  to 
extend  its  route  southerly,  or  in  any  other  direction  in  the 
city  of  New  York  that  the  Bridge  Company  may  choose,  on 
such  railroads  laying  their  own  railroad  tracks  and  paying 
for  the  right  to  use  the  Company's  viaducts. 

The  act  in  question  does  not  contain' any  provision  nam- 
ing any  of  these  things  assumed  to  be  done.  They  are 
claimed  to  be  included  in  the  words  "  appurtenances,  con- 
nections, approaches,  and  stations."  It  is  needless  to  say 
that  if  the  authority  asserted  exists — in  principle — there  is 
no  limit  as  to  what  may  be  done  of  the  like  character. 

WHAT  MAY  HE  DONE. 

The  property  of  a  citizen,  under  this  act,  may  be  con- 
demned for  an  44  approach,"  a  4<  connection,"  a  "  station  " 
or  an  "  appurtenance,"  by  drawing  a  black  mark  around  his 
name,  or  a  diagram  of  his  property,  in  the  private  parlor  of 
one  of  the  Commissioners.  There  is  nothing  in  the  act 
requiring  the  Commissioners  to  give  any  notice  or  hearing 


13 


to  any  party  in  interest  in  advance,  or  at  any  stage  of  their 
proceedings,  and  the  first  intimation  an  owner  of  property 
in  any  part  of  the  city  may  have  that  his  property  is  con- 
demned or  injured  by  a  "  location,"  may  be  by  reading  a 
description  of  the  ground  appropriated,  in  the  newspapers, 
as  in  the  recent  instance,  or  by  more  summary  intimation 
under  the  following  provision  of  the  act  (Sec.  7)  :  "  Said 
corporation  may,  by  its  surveyors,  engineers,  agents,  or  offi- 
cers, enter  upon  such  real  estate,  sites,  and  locations  and 
take  possession  of  the  same."  It  provides  that  all  such 
property  entered  upon  as  aforesaid  shall  be  purchased  at  a 
price  to  be  mutually  agreed  on,  or  by  compulsory  proceed- 
ings— which  may  be  protracted  by  litigation  and  prove  long 
and  dilator}'.  The  company  takes  possession  first  and  pays 
afterward.  Possession  of  property  is  the  essential  element 
of  ownership.  Taking  private  property,  without  compen 
sation,  in  this  manner  is  in  conflict  with  Section  6  of  Article 
I  of  the  Constitution  of  this  State.  But  that  is  a  little 
matter  to  these  gentlemen.  There  is  no  provision  in  the 
act  requiring  any  map  to  be  filed  or  record  made  of  a  "  lo- 
cation "  in  any  public  office  or  other  accessible  place.  No 
allusion  whatever  is  made  in  the  act  to  the  municipal 
authorities  of  the  city  of  New  York — except  the  permission 
to  the  Mayor  to  name  one  Commissioner  out  of  five,  with 
a  provision  that  the  majority  shall  control  in  all  respects — 
or  to  any  executive  officer  thereof;  and  no  provision  is  made 
for  any  compensation  for  the  franchises  proposed  to  be 
operated  and  enjoyed.  The  city  is  treated  as  if  it  were 
vacant  or  desert  land  to  be  taken  possession  of  at  the  dis- 
cretion of  the  Company. 

This  act  is  a  marked  exception  to  the  general  rule  of  leg- 
islation in  like  cases.    Invariably  where  a  grant  of  legisla- 


14 


tive  authority  to  take  private  property  for  public  use  is 
given,  provision  is  made  for  the  protection  of  the  owner  by 
ample  notice  of  what  is  proposed  to  be  done  and  for  redress 
against  improper  locations.  The  General  Railroad  Act  re- 
quires that  every  company,  before  constructing  any  part 
of  its  road,  shall  make  a  map  and  profile  of  the  route 
intended  to  be  adopted  by  such  company,  which  shall  be 
certified  by  the  President  and  Engineer  of  the  company 
and  filed  in  the  County  Clerk's  or  Register's  office,  as  the 
case  may  be.  The  company  shall  give  written  notice  to 
all  actual  occupants  of  the  land  over  which  the  route  runs 
of  the  time  and  place,  when  and  where,  such  maps  and  pro- 
file were  filed,  that  the  route  passes  over  such  land.  Any 
occupant  or  owner  of  such  land  feeling  aggrieved  by  the 
proposed  location  may,  within  fifteen  days  after  receiving 
written  notice  as  aforesaid,  give  ten  days'  notice  to  such 
company,  and  to  the  owner  or  occupant  of  lands  to  be 
affected  by  any  proposed  alteration  of  the  route,  of  the 
time  and  place  of  an  application  to  a  Justice  of  the  Su- 
preme Court  for  the  appointment  of  Commissioners  to 
examine  said  route.  The  matter  is  thus  brought  before 
the  Court  and  finally  decided  after  a  full  hearing,  in  a  man- 
ner just  to  every  one  concerned  ;  and  in  all  cases,  except 
this  act,  the  streets  of  cities  are  protected  in  the  interest  of 
the  municipality  and  of  the  owners  occupying  land  along 
which  a  route  is  to  proceed. 

If  the  authority  which  has  been  practically  asserted  thus 
far  under  this  act  can  be  carried  into  complete  effect,  with 
incontestable  warrant  of  law,  the  mere  despotic  will  of  these 
corporators,  or  the  Commissioners  of  location,  those  named 
by  the  Legislature  being  a  majority  and  being  given  abso- 
lute control,  usurping  dominion  over  the  city  in  every  dircc- 


15 


tion,  including  the  viaduct  use  of  the  streets  and  avenues, 
as  I  shall  show  presently — having  no  regard  for  public  or 
private  right — a  power  sheltered  in  ambuscade,  moving 
mysteriously  without  any  previous  notice  of  its  purpose, 
ignoring  every  established  rule  for  the  conservative  protec- 
tion of  property,  acting  without  responsibility  or  means  of 
adequate  redress — what  becomes  of  the  boasted  rights  of  the 
municipality  and  the  citizen  ?  of  all  the  high-toned  senti- 
ments of  which  we  hear  so  much  from  our  public  men — about 
taxation  and  representation,  home  rights  and  home  rule  ? 

This  is  no  mere  freshet  in  which  a  fragment  of  protection 
is  carried  away,  nor  any  overflow  of  pent-up  waters  which 
may  spend  their  force  and  the  injury  be  eventually  over- 
come ;  it  is  simply  the  deluge  ;  the  superstructure,  pillars, 
and  foundations  of  the  municipal  edifice  are  swept  away 
and  lost.  Not  an  essential  right  is  left  over  the  broad 
sweep  of  this  bill. 

Thus  the  owners  and  occupants  of  property  in  this  city 
who  may  from  time  to  time  be  unjustly  affected  by  these 
locations  are  without  any  remedy,  unless,  indeed,  an  action 
against  the  Company  or  the  personal  responsibility  of  the 
Commissioners  be  accepted  as  furnishing  the  promise  of 
reparation. 

There  is  a  well-established  principle  of  law  which  may 
give  measurable  indemnity — to  the  effect  that  he  who  will- 
fully does  an  unwarrantable  act  under  the  color  of  an  office 
is  responsible,  personally,  for  the  consequences  to  the 
injured  party.  It  has  been  held,  recently,  in  an  adjoining 
State,  that  where  Commissioners  of  location  exceed  the 
reasonable  limitations  of  their  powers  by  including  land 
not  fairly  embraced  within  their  jurisdiction,  they  are  per- 
sonally responsible  in  damages  to  the  owner  or  owners  for 


1 6 


the  injury  inflicted  by  such  wrongful  inclusion.  The  per- 
sonal responsibility  of  these  Commissioners  of  location  can 
thus  be  invoked  in  the  courts  by  any  aggrieved  citizen. 

NULLIFYING  CONFLICT  OF  AUTHORITY 

There  are  two  distinct  authorities  in  the  act  to  make 
"  locations,"  covering  the  same  ground.  By  the  7th  Section 
of  the  act,  the  corporation  is  authorized  to  purchase, 
acquire,  receive,  hold,  and  use  such  real  estate  or  interest 
therein  as  may  be  necessary  and  convenient  in  accomplish- 
ing the  object  for  which  the  charter  is  granted,  and  shall 
have  the  power  to  "  locate  "  the  necessary  connections  to 
and  for  railroads  to  connect  therewith.  The  act  then 
authorizes  the  company  to  enter  upon  and  take  possession 
of  such  real  estate,  sites,  and  locations.  It  provides  that 
'*  all  such  real  estate,  sites,  and  locations  as  shall  be  entered 
on  as  aforesaid  shall,  except  donations,  be  purchased  of  the 
owner  or  owners  at  a  price  to  be  mutually  agreed  upon." 
In  case  any  such  corporation  cannot  agree  with  the  owner 
or  owners  of  such  real  estate,  or  of  any  interest  therein 
within  the  boundaries  of  the  State  of  New  York,  "  it  shall 
have  the  right  to  acquire  title  to  the  same  in  the  manner 
and  by  special  proceeding  prescribed  in  this  act."  The  act 
goes  on  to  say  (Sec.  8):  "  For  the  purpose  of  acquiring  such 
title,"  the  said  corporation  may  present  a  petition,  etc.,  to 
the  Supreme  Court.  Thereupon  follow  nine  elaborate  sec- 
tions, copied  from  the  General  Railroad  Act,  defining  the 
manner  in  which,  by  compulsory  proceedings,  under  the 
d  legated  authority  of  eminent  domain  of  the  State,  the 
title  to  such  u  located  "  land  and  connections  shall  be 
finally  secured.     Nothing  is  said  in  this  part  of  the  act 


17 

about  a  location  by  or  through  any  other  authority.  Yet 
by  the  19th  Section  of  the  act,  it  is  declared  that  the 
Governor  of  the  State  of  New  York,  and  the  Mayor  of  the 
city  of  New  York  shall,  within  thirty  days  after  this  act 
shall  have  been  passed  and  become  a  law,  each  appoint  a 
person,  who,  together  with  Andrew  H.  Green,  Frank  K. 
Hain,  and  Charles  M.  Vail,  of  the  city  of  New  York  and 
State  of  New  York,  or  the  successors  of  any  of  them, 
appointed  as  hereinafter  provided,  shall  be  Commissioners, 
who,  or  a  majority  of  them,  all  being  present  and  acting, 
shall  have  power  to  locate  said  bridge,  appurtenances,  and 
approaches  thereto,  and  stations,  which  location  shall  not 
be  changed  except  by  and  with  the  consent  of  a  majority 
of  the  five  Commissioners  so  appointed,  and  so  forth*  Now 
this  location  by  Commissioners  is  not  related  to  or  con- 
nected with  the  special  proceedings  provided  to  earn-  into 
effect  the  "  locations  "  by  the  corporation  itself  by  any 
language  of  the  act.  There  is  absolutely  no  authority  in 
the  act  to  carry  into  effect  the  "  locations  "  of  these  Com- 
missioners, except  through  voluntary  sales  by  the  owners  of 
property  on  their  own  terms. 

I  think  I  understand  how  this  condition  of  the  act  was 
brought  about.  The  act  was  considered  complete  in  itself, 
with  the  provisions  relating  to  "  locations  "  by  the  Com- 
pany, when  to  overcome  some  scruples  of  a  controlling 
character,  the  feature  of  locations  by  Commissioners  was 
settled  on  and  the  section  crudely  added  without  adapting 
the  existing  sections  of  the  act  to  the  change.  But  which 
"  location  "  is  to  have  sway  over  the  ground  covered  by 
both?  Does  not  one  nullify  the  other?  If  one  is  pro- 
ceeded with,  why  not  the  other?  They  cannot  go 
together.  There  is  no  attempt  to  graft  them.  As  to  the 
3 


1 8 


Commissioners  of  "  location  " — as  we  have  seen — they  are 
five  in  number:  one  is  given  to  the  State,  to  be  named  by 
the  Governor  ;  one  more  is  given  to  the  city,  to  be  appointed 
by  the  Mayor ;  the  remaining  three,  or  a  majority,  are 
designated  by  the  Legislature  in  the  bill  itself,  and  then  it 
declares  that  a  majority  shall  control  in  all  directions.  The 
"  locating  "  power  is  in  perpetuity,  so  far  as  the  Commis- 
sioners are  concerned,  and  there  is  no  end  or  limit  in  the 
act  as  to  the  power  of  the  corporation  itself  in  this  respect. 
The  jurisdiction  to  "  locate  "  for  the  purposes  of  the  act 
extends  to  "  the  boundaries  of  the  State."  The  act  is 
evidently  a  hotch  potch — the  work  of  many  hands — some 
of  them  very  hurried,  unskilful,  and  careless.  Parts  of  the 
act  look  as  if  they  had  been  thrown  together  by  a  legislative 
pitchfork. 

By  way  of  illustration,  I  will  mention  one  peculiarity  of 
the  act — that  is,  that  there  is  no  express  authority  in  it  to 
construct  a  bridge.  Its  title  is,  An  Act  to  incorporate  The 
New  York  and  New  Jersey  Bridge  Company  for  the  pur- 
pose of  constructing  and  maintaining  a  bridge  for  passengers 
and  other  traffic  over  the  waters  between  New  York  City 
and  the  State  of  New  Jersey,  together  with  all  necessary 
connections,  appurtenances,  and  approaches  thereto,  and 
stations. 

The  first  section  of  the  act  provides  that  all  persons  who 
shall  become  stockholders  pursuant  to  the  act  shall  be  and 
are  thereby  incorporated  and  created  a  body  corporate  by 
the  name  mentioned  in  the  title  of  the  act,  with  power  to 
associate  with  any  other  person,  company,  association,  or 
corporation  in  the  United  States  "  for  the  purpose  "  of  con- 
structing and  maintaining  a  permanent  bridge  for  pas- 
sengers and  traffic — following  the  title.    Now  this  language 


19 

is  very  clear  as  to  "  the  purpose  "  for  which  the  corporation 
is  organized,  but  it  is  not  followed  by  authority  to  do  the 
thing  purposed. 

Looking  only  to  the  act  itself,  it  may  have  been  that  the 
Legislature  was  of  the  belief,  that  by  the  association  with 
the  other  companies  in  the  United  States,  as  proposed,  the 
authority  was  to  be  obtained.  That  it  was  a  corporation 
designed  to  avail  itself  thus  of  an  existing  franchise.  It  is 
one  matter  to  have  the  purpose  to  do  a  thing  and  another 
to  have  the  right  to  do  it.  The  purpose  and  power  must 
go  together  to  make  the  way  clear.  It  is  the  invariable 
rule  of  legislation,  when  a  "  purpose  "  is  stated  in  the  crea- 
tion of  a  corporation  and  it  is  intended  to  grant  legislative 
power  to  carry  that  purpose  into  effect,  to  do  so  according 
to  the  established  legal  form,  by  express  grant.  The  rule 
is  without  exception.  I  will  cite  a  prominent  example — 
that  of  the  General  Railroad  Act. 

The  first  section  of  that  act  provides  that  any  number  of 
persons,  not  less  than  twenty-five,  may  form  a  company  for 
"  the  purpose  "  of  constructing,  maintaining,  and  operating 
a  railroad  for  public  use,  and  may  make  articles  of  associa- 
tion for  that  purpose,  specifying,  in  detail,  the  objects 
intended,  the  name  of  the  company,  the  number  of  years 
it  is  to  continue,  the  places  from  and  to  which  the  road  is 
to  be  constructed,  the  capital  stock,  and  the  number  of 
shares.  But  the  act  is  very  careful  to  specifically  grant  the 
authority  to  do  the  thing  for  which  the  company  has  "  the 
purpose  "  to  be  organized.  The  power  of  the  State  is  dis- 
tinctly and  definitely  conferred.  Section  28  of  this  General 
Act,  subdivision  4,  declares  that  every  corporation  formed 
under  it,  "shall  have  power  "  "  to  lay  out  its  road  not  exceed- 
ing six  rods  in  width,  and  to  construct  the  same."    Title  3, 


20 

Chapter  18,  Section  3,  of  the  first  part  of  the  Revised 
Statutes,  provides,  that  110  corporation  shall  possess  or 
exercise  any  corporate  powers  except  the  general  powers 
enumerated  in  that  title  and  "those  expressly  given"  in  its 
charter,  or  as  shall  be  necessary  to  the  exercise  of  the 
powers  so  enumerated  and  given.  I  do  not  rely  on  this 
point — I  allude  to  it  by  way  of  example — the  other  objec- 
tions being  so  numerous  and  conclusive. 

AS   TO   THE    USE    OF    THE   STREETS   AND   AVENUES  FOR 
THE  COMPANY'S  VIADUCTS. 

I  will  here  notice  a  point  which  has  excited  some  in- 
quiry— that  is,  assuming  that  the  Company  has  the  power  it 
claims,  has  it  the  authority  to  use  the  streets  and  avenues 
of  the  city  for  its  viaduct  purposes?  The  7th  Section,  after 
declaring  that  the  Company  shall  have  the  power  to  locate 
and  construct  the  necessary  connections  to  and  for  rail- 
roads to  connect  therewith,  and  to  take  possession  of  the 
same,  specifies  certain  exceptions,  and  among  others  that 
the  Company  shall  not  take  possession  of  "any  Public  Park 
or  the  surface  of  any  street  or  avenue."  u  Possession  "  is  a 
broad  word.  The  limitation  to  taking  "  possession "  of 
any  street  or  avenue,  it  will  be  seen,  is  confined  to  the 
"  surface"  of  such  street  or  avenue.  As  the  Company  pro- 
poses to  use  viaducts  which  do  not  require  **  possession  "  of 
the  "surface,"  the  limitation  is  no  obstruction  to  the  use  of 
the  street  above  and  beyond  the  surface  in  the  viaduct 
mode  proposed.  It  must  be  concluded  that  the  exception 
has  been  made  in  this  limited  way,  for  its  obvious  object — 
industriously — to  give  all  else  to  the  Company,  of  streets 
and  avenues,  but  the  surface.    If  an  act  should  say,  for  ex- 


4 


21 


ample,  that  a  railroad  company,  in  laying  its  tracks,  should 
not  take  possession  of  ten  feet  on  the  westerly  side  of  the 
streets  and  avenues  along  its  route,  I  think  the  remaining 
part  of  the  street  would  be  plainly  at  its  disposal.  Claim- 
ing the  right,  therefore,  to  build  its  viaducts  in  any  direc- 
tion it  may  think  proper  and  to  make  a  railroad  connection 
or  establish  a  station  or  depot — if  its  contention  is  sound 
— it  may  build  its  elevated  roads  over  and  above  any  street 
or  avenue  in  the  city,  not  excluding  Broadway  or  Fifth 
Avenue.  The  fact  that  the  Commissioners  have  not  used 
the  streets  and  avenues,  except  in  crossing,  for  their  initial 
"location,"  does  not  prove  anything;  we  must  look  to 
what  follows  in  due  order  of  time.  If  the  act  is  valid,  it  is 
an  inexhaustible  mine  of  power. 

FIRST  OBJECTION. 

The  first  point  I  make  is  that  a  bridge  cannot  be  con- 
structed over  the  Hudson  River,  from  shore  to  shore, 
under  the  operation  of  this  or  any  similar  act.  Its  permis- 
sion to  the  Company  named  in  the  act,  to  associate  with 
any  other  persons,  company,  association,  or  corporation  in 
the  United  States  for  the  purpose  of  building  such  a 
bridge,  even  if  the  full  power  of  the  State  were  given  by 
our  Legislature  to  the  corporators — is  based  on  a  fallacy. 
These  corporators  appear  to  be  of  the  belief  that  by  uniting 
with  a  charter  from  the  New  Jersey  Legislature,  the  char- 
ter of  each  State  will  have  the  authority  of  both.  This 
plainly  is  not  the  case.  The  authority  of  an  act  of  the 
Legislature  of  this  State  cannot  extend  beyond  the  boun- 
daries of  the  State.  The  same  is  the  case  with  an  act  of 
Legislature  of  New  Jersey.  They  cannot  be  joined  to- 
gether.   In  fact,  the  act  in  question,  of  our  State,  does  not 


22 


pretend  to  go  to  the  other  shore,  and  could  not  get  there 
if  it  did.  It  provides  for  a  bridge  over  the  waters  of  the 
Hudson  between  this  city  and  "the  State  of  New  Jersey." 
The  boundary  line  between  the  two  States  is  the  limitation. 
That  line  is  equally  the  limit  on  the  other  side.  Where  is 
that  line?  The  boundary  between  New  York  and  New 
Jersey  was  originally  established  by  Commissioners  ap- 
pointed by  the  two  colonies  in  1772,  and  again  in  1833  Dv 
Commissioners  likewise  appointed  by  the  two  States  for 
that  purpose.  The  same  agreement  was  adopted  by  the 
Legislature  of  each  State.  The  Commissioners  on  the  last- 
named  occasion  were  Benjamin  F.  Butler,  Peter  Augustus 
Jay,  and  Henry  Seymour  on  behalf  of  the  State  of  New 
York,  and  Theodore  Frelinghuysen,  James  Parker,  and 
Lucius  Q.  Elmer  on  behalf  of  the  State  of  New  Jersey. 
An  agreement  of  seven  articles  was  entered  into  between 
these  parties  on  the  16th  day  of  September,  1833.  The  7th 
Article  of  this  agreement  will  be  instructive  for  this  case. 
It  provided  as  follows :  <l  This  agreement  shall  become 
binding  on  the  two  States  when  confirmed  by  the  Legisla- 
tures thereof  respectively  and  when  approved  by  the  Con- 
gress of  the  United  States." 

ARTICLE  i.  Declares  the  boundary  line  between  the  two 
States  of  New  York  and  New  Jersey,  from  a  point  in  the 
middle  of  the  Hudson  River  opposite  the  point  on  the 
West  Shore  thereof,  in  the  forty-first  degree  of  north  lati- 
tude, as  heretofore  ascertained  and  marked,  to  the  main 
sea,  shall  be  the  middle  of  the  said  river,  of  the  Bay  of  New 
York,  of  the  waters  between  Staten  Island  and  New  Jer- 
sey and  of  Raritan  Bay,  to  the  main  sea,  except  as  herein- 
after otherwise  particularly  mentioned. 

Al<r.  2.  Is  not  important. 


23 


Art.  3.  Declares  that  the  State  of  New  York  shall  have 
and  enjoy  exclusive  jurisdiction  over  all  the  waters  of 
Hudson  River  lying  west  of  Manhattan  Island  to  the  low- 
water  mark  on  the  westerly  or  New  Jersey  side  thereof ; 
subject  to  the  following  rights  of  property  and  of  jurisdic- 
tion of  the  State  of  New  Jersey,  that  is  to  say  : 

SECTION  I.  The  State  of  New  Jersey  shall  have  the  ex- 
clusive right  of  property  in  and  to  the  land  under  water 
lying  west  of  the  middle  of  the  Bay  of  New  York  and 
west  of  the  middle  of  that  part  of  the  Hudson  River  which 
lies  between  Manhattan  Island  and  New  Jersey. 

SEC.  2.  The  State  of  New  Jersey  shall  have  the  exclu- 
sive jurisdiction  over  the  wharves,  docks,  and  improvement 
made  and  to  be  made  on  the  shore  of  said  State,  and  of  and 
over  all  vessels  aground  on  said  shore  or  fastened  to  any 
such  wharf  or  dock  ;  except  that  the  said  vessels  shall  be 
subject  to  quarantine  or  health  laws  in  relation  to  passen- 
gers of  the  State  of  New  York,  which  now  exist  or  which 
may  hereafter  be  passed. 

Sec.  3.  The  State  of  New  Jersey  shall  have  the  exclu- 
sive right  of  regulating  the  fishing  on  the  westerly  side  of 
the  middle  of  the  said  waters,  provided  that  the  navigation 
be  not  obstructed  or  hindered. 

Art.  6.  Provides  that  criminal  process  issued  under  the 
authority  of  the  State  of  New  Jersey,  against  any  person 
accused  of  an  offence  within  that  State  ;  or  committed  on 
board  of  any  vessel  being  under  the  exclusive  direction  of 
that  State  as  aforesaid  ;  or  committed  against  the  regu- 
lations made  or  to  be  made  by  that  State,  in  relation  to  the 
fisheries  mentioned  in  the  third  article  ;  and  civil  process 
issued  under  the  authority  of  the  State  of  New  Jersey 
against  any  person  domiciled  in  that  State,  or  against  any 


24 


property  taken  out  of  that  State  to  evade  the  laws  thereof ; 
may  be  served  upon  any  of  the  said  waters  within  the 
exclusive  jurisdiction  of  the  State  of  New  York,  unless 
such  person  or  property  shall  be  on  board  a  vessel  aground 
upon,  or  fastened  to  the  shore  of  tne  State  of  New  York,  or 
fastened  to  a  wharf  adjoining  thereto  ;  or  unless  such  per- 
son shall  be  under  arrest  by  virtue  of  process  or  authority 
of  the  State  of  New  York. 

Art.  7.  In  the  very  words  of  Article  6  gives  the  like 
authority  to  the  State  of  New  York  "  upon  any  of  the  said 
waters  within  the  exclusive  jurisdiction  of  the  State  of 
New  Jersey." 

This  agreement  was  ratified  by  the  Legislatures  of  the 
two  States  and  assented  to  by  Congress.  It  will  be  seen 
that  the  territorial  boundary  line  between  the  two  States  is 
the  middle  of  the  Hudson  River  between  Manhattan  Island 
and  the  State  of  New  Jersey,  the  latter  State  owning  the 
land  under  water  westerly  of  such  line,  and  having  the  ex- 
clusive right  of  regulating  the  fisheries  on  that  side  of  the 
water.  That  the  State  of  New  York  has  jurisdiction  over 
the  waters  of  the  Hudson  River  to  low-water  mark  on  the 
New  Jersey  shore,  apparently  for  quarantine  purposes;  that 
both  States  have  the  like  jurisdiction  over  such  waters 
from  shore  to  shore  for  the  execution  of  criminal  process, 
the  recovery  of  property,  and  the  service  of  civil  process  in 
the  cases  specified  ;  that  under  no  circumstances  could  the 
State  of  New  York  authorize  the  building  of  abridge  or 
other  structure  on  the  New  Jersey  shore,  and  that  when  a 
statute  of  this  State  provides  for  a  bridge  between  the  city 
of  New  York  and  the  State  of  New  Jersey,  the  westerly 
end  of  such  bridge  necessarily  terminates  at  the  boundary 
line  of  the  State  in  the  middle  of  the  river. 


25 


It  will  be  contended  that  a  charter  from  the  State  of  New 
Jersey  and  another  from  the  State  of  New  York  make  a 
concurrence  and  agreement  between  the  two  States  for  the 
one  object.  I  have  not  seen  the  charter  from  the  State  of 
New  Jersey,  but  I  assert  that  it  will  found  to  be  a  very  dif- 
ferent instrument  from  that  granted  by  this  State  under 
this  act.  I  hear  that  it  is  a  time-worn  veteran  of  the  lobby 
at  Trenton,  and  has  done  active  service  for  a  quarter  of  a 
century  in  search  of  a  vocation  and  a  price  ;  that  its  owners 
are  manifold,  and  form  a  regiment  of  stalwart  defenders  of 
chartered  rights.  But  the  Constitution  of  the  United  States 
does  not  authorize  any  such  welding  of  the  ends  of  the 
legislation  of  two  States.  Art.  I,  Sec.  10,  of  the  Constitu- 
tion of  the  United  States,  declares  that:  "No  State  shall, 
without  the  consent  of  Congress,  enter  into  any  compact  or 
agreement  with  another  State." 

Several  agreements  have  been  made  between  the  State 
of  New  York  and  New  Jersey  in  conformity  with  this  regu- 
lation. Commissioners  in  each  case  were  appointed  for  a 
defined  purpose.  An  agreement  was  made  embodying  their 
conclusions,  with  an  article  such  as  I  have  quoted  above  ; 
and  when  the  agreement,  in  each  instance,  was  confirmed 
by  the  two  Legislatures  and  received  the  approval  of  Con- 
gress, it  became  the  act  of  the  two  States,  and  went  into 
complete  effect. 

A  bridge  reaching  from  shore  to  shore,  lying  half  a  mile  or 
half  a  rod  within  each  State,  can  only  be  constructed  by  an 
agreement  between  the  two  States,  made  in  conformity  with 
the  fundamental  law.  If  it  were  practicable  to  join  the  ends 
of  legislation  between  the  two  States  for  the  purposes  of  a 
bridge,  what  a-i  absurd  condition  would  exist.  In  this  case 
the  one  end  would  belong  to  New  York,  and  be  subject  to 

4 


26 


all  the  vicissitudes  of  legislation  which  the  Constitution 
permits  in  regard  to  corporations.  At  the  other  end,  New- 
Jersey  would  control  with  her  separate  rights  and  interests, 
able  at  any  time  to  close  up  all  egress  or  communication, 
or  to  control  it  otherwise,  —  to  hamper  or  restrict  it.  Where 
would  be  the  guarantee  of  uniformity  or  stability?  No; 
there  must  be  an  agreement  settled  on  between  the  States, 
arranged  by  Commissioners  or  other  authorities  represent- 
ing the  sovereignty  of  each  State,  giving  the  requisite 
sanction  from  both  States  and  defining  the  limitations  and 
conditions  upon  which  such  a  bridge  shall  be  built  and 
jointly  maintained.  It  must  be  the  same  agreement  for 
each  State,  and  on  being  confirmed  by  the  Legislatures  of 
the  two  States,  must  be  approved  by  Congress.  When  the 
authority  is  thus  obtained,  I  am  of  the  opinion  that  our 
Legislature  can  authorize  a  corporation  to  build  the  bridge 
so  far  as  this  State  is  concerned. 


SECOND  OBJECTION. 

My  second  point  arises  under  the  Constitution  of  this 
State.  By  the  amendment  which  went  into  effect  on  the 
first  day  of  January,  1875  (Art.  3,  Sec.  18),  the  Legislature 
is  prohibited  from  doing  certain  things;  among  others,  it  is 
declared  that  the  Legislature  shall  not  pass  a  private  or  local 
bill  providing  for  building  bridges  and  chartering  companies 
for  such  purposes,  except  on  the  Hudson  River  below 
Watcrford  and  on  the  East  River,  or  over  the  waters  form- 
ing part  of  the  boundaries  of  the  States.  It  is  under  this 
exception  that  the  legislative  authority  to  pass  this  act  is 
claimed  to  exist.  I  have  shown  what  must  precede  such 
legislation  in  order  to  provide  a  bridge  between  and  on  the 


27 


territory  of  the  two  States.  Then  an  act  may  have  some 
efficient  vitality.  But  assuming  that  an  act  may  be  validly 
passed  to  build  a  bridge  to  the  extent  of  the  territorial 
jurisdiction  of  this  State — that  is.  to  the  middle  of  the  Hud- 
son River — what  kind  of  a  bridge  is  it?  It  is  simply  a 
means  of  communication  across  the  water.  A  bridge  pure 
and  simple — nothing  more.  The  Constitution  says  nothing 
about  a  railroad  bridge  or  for  railroad  communications.  It 
says  nothing  about  railroad  "  connections,  approaches,  ap- 
purtenances, or  stations."  For  a  bridge  of  communication 
between  two  shores — if  it  should  reach  that — we  have  an 
example  in  the  Brooklyn  Bridge.  The  elevation  to  persons 
travelling  on  the  latter  is  overcome  by  platforms  and  stairs 
as  aids  to  the  necessary  ascent  and  descent.  In  this  case 
with  the  additional  height,  elevators  would  accomplish  the 
purpose  better,  and  thus  access  to  the  bridge  be  conveni- 
ently secured.  If  the  framers  of  the  amendment  to  the 
Constitution  I  have  quoted,  had  thought  it  possible  that 
any  one  would  have  attempted  to  build  a  railroad  bridge 
across  the  Hudson  to  New  Jersey,  it  is  quite  probable  they 
would  have  framed  the  amendment  so  as  to  expressly  forbid 
any  such  act.  It  is  not  difficult  to  see  that  sound  public 
policy  would  be  against  any  such  injurious  attack  upon  our 
own  State  system  of  railroads.  Again,  if  the  system  of 
universal  viaducting  of  this  company  could  be  put  in  opera- 
tion, and  the  passengers  from  the  East  carried  directly 
around  the  rim  of  the  river  and  over  it  to  Philadelphia, 
and  then  West,  how  would  that  be  of  advantage  to  this 
city?  Those  passengers  may  want  to  get  to  Philadelphia 
or  go  West  eventually,  but  in  the  meantime,  now,  they  stay 
in  the  city  and  furnish  support  to  our  great  hotels  and 
custom  to  our  flourishing  stores.    I  will  not  pursue  this 


28 


branch  of  the  subject  further.  It  is  capable  of  much  ampli- 
fication, but  I  would  ask  of  what  benefit  would  that  pur- 
pose, of  which  this  Company  makes  so  much,  be  to  our 
city,  "  that  rapid  transit  would  be  furnished  to  hitherto  in- 
accessible parts  of  New  Jersey"?  We  are  striving  to  do 
everything  in  our  power  to  keep  our  population  and  in- 
crease it,  with  parks  and  magnificent  improvements  and 
expenditures,  and  our  prosperity  depends  on  our  residential 
capital. 

THIRD  OBJECTION. 

My  next  point  is  that  the  Constitution  providing  only 
for  a  bridge  of  communication,  having  no  railroad  purpose, 
the  authority  to  construct  "  approaches,  connections,  ap- 
purtenances," and  the  like  for  the  exclusive  benefit  of  this 
corporation  is  not  only  futile  for  such  a  bridge,  but  not 
being  covered  by  the  constitutional  exception  I  have  cited, 
its  authority  must  be  found  in  the  unrestricted  power  of 
the  Legislature,  if  at  all.  I  shall  not  go  into  a  recital  of 
the  various  exclusive  franchises,  privileges,  and  immunities 
which  arc  included  in  the  claims  of  the  Company.  But 
they  are  all  involved  in  another  part  of  the  same  Section  18 
of  Article  3  of  our  Constitution,  which  declares  that  the 
Legislature  shall  not  pass  a  private  or  local  bill,  "  granting 
to  any  private  corporation,  association,  or  individual  any 
exclusive  privilege,  immunity,  or  franchise  whatever." 

It  may  pass  an  act  to  provide  for  building  a  bridge  after 
the  question  is  settled  between  the  States,  but  it  cannot 
give  the  right  to  build  viaducts  and  connections  in  and 
through  all  parts  of  a  city,  over  its  streets  and  avenues  and 
through  its  blocks  of  ground,  and  go  to  any  part  of  the 
State,  for  this  act  claims  authority  everywhere  "  within  the 


29 


boundaries  of  the  State,"  and,  in  any  event,  could  not  do 
any  of  these  things  for  a  bridge  which  terminates  in  the 
middle  of  the  river. 

FOURTH  OBJECTION. 

This  bill  says  in  form  that  the  corporation  it  creates  shall 
not  lay  down  any  railroad  tracks  anywhere,  but  it  is  given 
the  right  to  lease  the  appurtenances,  approaches,  and  sta- 
tions to  and  for  any  chartered  corporation,  and  "to  con- 
struct the  necessary  connections  to  and  for  railroads  to 
connect  therewith,"  and  to  receive  compensation  for  the 
same.  It  is  thus  that  they  claim  the  right  to  construct 
universal  viaducts  and  make  them  pay.  It  is  thus,  appar- 
ently, that  the  Manhattan  Elevated  is  to  be  extended,  the 
first  connection  for  that  purpose  being  "  located  "  at 
Thirty-third  Street  and  Sixth  Avenue.  It  is  thus,  also, 
that  all  the  railroads  these  viaducts  can  connect  with  or 
intersect,  are  to  have  t Heir  franchises  extended  and  their 
roads  made,  practically,  city  railroads.  This  universal 
authority,  as  interpreted  by  the  Company,  runs  counter  to 
another  provision  of  the  Section  of  Article  3  of  the  Consti- 
tution I  have  referred  to.  It  reads  as  follows  :  the  Legis- 
lature shall  not  pass  a  private  or  local  act  "  granting  to 
any  corporation,  association,  or  individual,  the  right  to  lay 
down  railroad  tracks."  But  the  Constitution  declares  that 
the  Legislature  must  pass  general  laws  for  such  purpose. 
Now,  therefore,  not  one  of  the  twenty  to  forty  railroad 
companies  in  question  could  lay  down  tracks  for  the  pro- 
posed changes  and  extensions  by  any  special  act  of  the 
Legislature,  but  would  have  to  proceed  under  the  General 
Railroad  Act,  and  under  the  system  of  public  and  private 


30 


protection  thus  established  to  effect  the  extension.  Yet 
this  bill  professes,  under  the  construction  of  its  benefi- 
ciaries, to  give  the  authority  to  all  of  them  to  extend 
their  routes  as  stated. 

Whether  this  is  conferring  authority  directly  on  each  of 
these  corporations  to  lay  down  rail  tracks  by  the  effect  of 
this  special  act,  or  whether  it  is  a  power  delegated  to  this 
Company  to  give  to  any  existing  corporation  the  authority 
and  franchise  to  extend  its  routes,  it  is  equally  in  direct 
violation  of  the  provision  of  the  Constitution  I  have  cited. 

The  reasons  for  these  restrictive  provisions  of  the  Consti- 
tution are,  that  legislation  is  a  public  trust,  and  all  the  cit- 
izens of  the  State  before  the  law  and  the  law-making 
power  are  equal.  We  do  not  confer  titles,  and  have  no 
right  to  give  fortunes  to  favorites  out  of  the  public  pocket 
by  legislative  grant.  Great  abuses  had  grown  up  in  grant- 
ing, through  the  law-making  power,  special  privileges  and 
franchises  to  friends,  associates,  and  representatives  of  legis- 
lators, especially  in  the  cases  of  city  railroads  and  privileges 
relating  to  cities  ;  this  city  being  the  particular  victim  be- 
cause of  the  value  of  the  use  of  its  streets.  All  the  city 
railroads,  down  to  that  time,  had  been  granted  without 
adequate  compensation  to  the  city.  In  fact,  the  compensa- 
tion had  been  nominal  It  is  estimated  that  if  the  real 
value  of  the  franchises  granted  to  private  individuals 
by  the  Legislature  to  use  our  streets  for  railroad  pur- 
poses had  been  realized  by  the  treasury  of  the  city,  the 
total  would  have  paid  our  municipal  debt  and  freed  the 
sinking  fund,  whereby  ten  millions  of  dollars  of  the  rev- 
enues of  the  city  could  be  applied  annually  to  reduce  tax- 
ation, reducing  it  in  each  year  thirty-three  per  cent.  It 
became  necessary  to  amend  the  Constitution  so  as  to  cure 


3i 


these  evils  by  the  erection  of  the  strongest  barriers  which 
the  English  language,  in  expert  control,  could  provide  ; 
hence  the  provisions  I  have  cited.  A  constitutional  amend- 
ment is  no  hastily  arranged  change  of  the  organic  law.  It 
must  be  adopted  by  two  Legislatures  and  approved  by  the 
vote  of  the  people  of  the  whole  State.  Thus  the  people, 
directly  and  indirectly,  vote  on  the  proposition  three  times. 
It  was  supposed  that  the  city  was  thus  saved  and  made 
secure  against  these  raids  on  its  rights.  Now  comes  this 
pretext  of  a  bridge,  and  it  appears  to  be  only  a  pretext,  to 
sweep  away  all  barriers  by  the  most  imperious  and  imperial 
appropriation  known  to  the  history  of  this  kind  of  local 
subjugation  and  individual  aggrandizement  through  legis- 
lative favor.    That  is,  if  the  act  can  stand  at  all. 

There  are  other  objections  to  this  most  objectionable  bill, 
but  space  will  not  allow  their  consideration  here  ;  I  may 
consider  them  in  a  supplementary  paper,  but  I  think  I  have 
stated  enough  to  show  that  the  Riverside  improvement  to 
which  you  refer  is  in  no  danger  from  this  measure. 

Very  truly,  etc., 

PETER  B.  SWEENY. 


izx  iOtbrtfi 


SEYMOUR  DURST 


When  you  leave,  please  leave  this  book 

Because  ii  has  been  said 
"Ever  thing  comes  t'  him  who  waits 

Except  a  loaned  book.'' 


Avery  Architectural  and  Fine  arts  Library 

(in  mi  Si  v\iot  k  B.  [)i  rsi  <)i  i)  York  Lirr  \m 


